Filed 8/18/21 In re E.R. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

opinions not certified for publication or ordered published, except as specified by rule 

8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re E.R., a Person Coming 

Under the Juvenile Court Law.

_______________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

M.C.,

Defendant and Appellant.

 B308631

 (Los Angeles County

 Super. Ct. No.

19CCJP04241C)

APPEAL from an order of the Superior Court of Los 

Angeles County, Martha Matthews, Judge. Affirmed.

Gina Zaragoza, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel and Kim Nemoy, 

Assistant County Counsel, for Plaintiff and Respondent.
2

M.C. (Mother), who has a long history of struggling with 

substance abuse, appeals from a juvenile court order assuming

dependency jurisdiction over her one-year-old1son E.R. (Minor)

after Mother tested positive for alcohol and marijuana and 

missed a couple of court-ordered drug tests. We are asked to 

decide whether substantial evidence supports the juvenile court’s 

jurisdiction finding.

I. BACKGROUND

A. Prior Pertinent Dependency History

In 2003, a juvenile court terminated Mother’s parental 

rights over two daughters due to Mother’s substance abuse; 

among other things, the younger of the two girls was exposed to 

cocaine in-utero. A year later, a third daughter was declared a 

dependent of the juvenile court based on the abuse and neglect of 

her older sisters; the court denied Mother reunification services 

and the girl was ultimately adopted by relatives in Texas. 

Fourteen years later, in 2018, the court terminated Mother’s 

parental rights over three other children due, in part, to Mother’s 

abuse of methamphetamine and marijuana while pregnant with 

the youngest of the three children and while caring for the two 

older children. 

In April 2019, while pregnant with the child that is the 

subject of this dependency appeal, Mother was arrested for 

1 This was Minor’s age at the time of the jurisdiction 

hearing. Minor was two months old at the time dependency 

proceedings were initiated.

Minor’s father is not a party to this appeal, because the 

allegations asserted against him were not sustained. 
3

methamphetamine possession. Two months after her arrest, the 

police discovered a methamphetamine pipe with residue inside of 

it in the bedroom Mother shared with her children. 

Shortly thereafter, the Los Angeles County Department of 

Children and Family Services (the Department) filed a petition 

alleging Minor’s two youngest siblings, J.R. and A.R.,2 were at 

risk of serious harm as a result of Mother’s history of substance 

abuse, current abuse of marijuana, and the abuse and neglect 

suffered by Mother’s six older children. The juvenile court 

sustained the petition, finding Mother’s history of drug abuse and 

evidence of recent relapses (entering two treatment programs in 

the two years immediately preceding the filing of the petition but 

completing only one) posed a substantial risk to J.R. and A.R. 

The juvenile court ordered both children removed from their 

parents’ custody due to Mother’s “high risk of relapse.” This 

court subsequently affirmed the juvenile court’s ruling in an 

unpublished opinion holding substantial evidence supported the 

jurisdiction finding. (In re J.R., et al. (December 29, 2020, 

B304328) [nonpub. opn.].)

B. These Dependency Proceedings

In November 2019, less than a month after Minor was 

born, the Department received a referral alleging general neglect 

of Minor. In response, a Department social worker interviewed 

Mother at a home she shared with her former mother-in-law and 

two of her adult children (including a son who admitted to using 

marijuana “regularly on a daily basis”). Mother admitted to past 

2 At the time of the petition’s filing, J.R. and A.R. were, 

respectively, two and a half years old and 15 months old. 
4

substance abuse but claimed she had been sober for the last five 

to six years and insisted court-ordered drug and alcohol tests had 

been negative. 

The Department filed a dependency petition in January 

2020. The petition alleged eight counts against Mother, one 

under Welfare and Institutions Code section 300, subdivision (a)

(risk of serious physical harm inflicted non-accidentally),

3

four

under subdivision (b)(1) (substantial risk of serious physical 

harm from a parental failure or inability to protect), and three 

under subdivision (j) (risk of abuse or neglect when a sibling has 

been abused or neglected). The b-3 count in the petition averred

Minor was endangered by Mother’s current abuse of marijuana 

and her 17-year history of substance abuse and child welfare 

proceedings. The j-2 count asserted Minor was at risk as a result 

of Mother’s past and current substance abuse and Mother’s prior

neglect of his older siblings. 

At the initial detention hearing, the juvenile court, over the 

Department’s objection, allowed Minor to remain at home with 

Mother contingent on Mother “continuing to test and test clean.” 

The court cautioned, however, that Mother must be vigilant 

because taking care of an infant is stressful and, “[a]s everyone 

knows who is in recovery, stress can cause relapse.” 

Following the filing of the petition, Mother was reinterviewed by a Department investigator. Mother told the 

investigator that she had been sober “for years” and claimed she 

was currently enrolled in outpatient programs only to help 

maintain that sobriety. (Mother’s description of her recent drug 

3 Undesignated statutory references that follow are to the 

Welfare and Institutions Code.
5

history was at odds with a statement she gave to the Department 

just a few months earlier in connection with the investigation 

into J.R. and A.R.’s well-being; in that earlier statement, Mother 

indicated she had relapsed twice within the last two years and 

had entered treatment programs following each relapse.) Mother 

also admitted her adult son’s marijuana use made her recovery 

from substance abuse more difficult, but she maintained she was 

not worried about relapsing; in her view, she had too much to 

lose. 

In advance of the jurisdiction and disposition hearing, the 

Department reported on Mother’s recent drug testing. The 

Department advised Mother had tested negative for substance 

use throughout her pregnancy with Minor and there were no 

records of Minor being born with a positive toxicology. After 

Minor’s birth, between November 2019 and January 2020, 

Mother had 13 negative test results and no positive test results. 

From June through October 2020, Mother had 14 negative test 

results but did not submit to testing three times—and one of 

those tests was scheduled just a week before the jurisdiction 

hearing that would later take place in November 2020.

4

 In 

addition, Mother tested positive on two occasions during this 

same time period: once for alcohol in July 2020, and once for 

marijuana in late September 2020 (which was about a month 

before the jurisdiction hearing). Mother attributed the positive 

alcohol test to apple cider vinegar pills which she was taking as a 

4 Mother offered no explanation for her failure to appear for 

two of these missed tests and the third missed test did not go 

forward apparently because Mother was unable to produce 

identification at the testing site. 
6

diet aid. Mother said she had “no idea” how she could have 

tested positive for marijuana. 

In advance of the jurisdiction hearing, the Department 

conceded some of the counts in the dependency petition should be 

dismissed. But the Department urged the juvenile court to 

sustain the aforementioned b-3 (substantial risk from substance 

abuse) and j-2 (sibling abuse or neglect) counts, to take 

dependency jurisdiction over Minor, and to keep Minor placed in 

Mother’s home albeit under the Department’s supervision.

At the November 2020 jurisdiction hearing, the court 

admitted Department reports concerning Minor and his siblings 

J.R. and A.R. in evidence and sustained petition counts b-3 and j2.

5

 Explaining its ruling, the court stated Mother’s long history of 

substance abuse and evidence of recent relapses posed a 

substantial risk to Minor’s well-being.6 The court dismissed the 

remaining counts in the petition. 

5 Although the court sustained the b-2 count alleging a 

substantial risk of serious harm attributable to Mother’s 

substance abuse, the court struck language in that count stating

Mother was “a current abuser of marijuana.” The court 

explained it was striking that language because Mother’s positive 

test for a “very small amount” of marijuana did not warrant 

characterizing Mother as an “abuser” of that drug.

6 The court was particularly concerned about Mother’s recent 

positive tests for alcohol and marijuana, her inability to offer 

plausible explanations for either of those test results, and her 

misrepresentations about her substance use. The court stated: 

“[W]hen a person has a long history of substance abuse, relapse is 

always a risk. Relapse is, basically, one bad decision away. 

And . . . denial is kind of a powerful force that can really pull a 

person back into relapse. [¶] When the case—the report that 
7

II. DISCUSSION

It is undisputed that Minor’s siblings, including J.R. and 

A.R. as discussed in our December 2020 opinion, have been found 

by a juvenile court to have been abused or neglected within the 

meaning of section 300, subdivision (b)(1). The juvenile court 

asserted jurisdiction over Minor under subdivision (j) of section 

300 in addition to subdivision (b)(1), so the only question we must 

decide is whether there is substantial evidence of a substantial 

risk that Minor would be abused or neglected within the meaning 

of section 300, subdivision (b)(1) as so many of his siblings had 

been. (In re I.J. (2013) 56 Cal.4th 766, 774 (I.J.) [“Subdivision (j) 

applies if (1) the child’s sibling has been abused or neglected as 

defined in specified other subdivisions and (2) there is a 

substantial risk that the child will be abused or neglected as

defined in those subdivisions”]; see also In re R.T. (2017) 3 

Cal.5th 622, 633.) As we will explain, there is.

“‘[S]ubdivision (j) was intended to expand the grounds for 

the exercise of jurisdiction as to children whose sibling has been 

abused or neglected as defined in section 300, subdivision (a), (b), 

was filed in February of this year, [Mother] was saying she’d been 

clean and sober for four years, but then that turned out not to be 

true. And so, you know, [Mother] has kind of gone back and forth 

in terms of just how honest she is with herself and other people 

about her substance abuse history. [¶] . . . [¶] [I]f someone is 

really trying to be clean and sober, there’s kind of a bright line. 

Sometimes people are tempted to think, ‘Well, I can still be clean 

and sober and smoke weed a little bit.’ But as people . . . discuss 

in recovery programs all the time, once you step over that line, 

you are at a huge risk of relapse because you’ve taken that first 

step.”
8

(d), (e), or (i). Subdivision (j) does not state that its application is 

limited to the risk that the child will be abused or neglected as 

defined in the same subdivision that describes the abuse or 

neglect of the sibling. Rather, subdivision (j) directs the trial 

court to consider whether there is a substantial risk that the 

child will be harmed under subdivision (a), (b), (d), (e) or (i) of 

section 300, notwithstanding which of those subdivisions

describes the child’s sibling.’ [Citation.]

“Unlike the other subdivisions, subdivision (j) includes a 

list of factors for the court to consider: ‘The court shall consider 

the circumstances surrounding the abuse or neglect of the sibling, 

the age and gender of each child, the nature of the abuse or 

neglect of the sibling, the mental condition of the parent or 

guardian, and any other factors the court considers probative in 

determining whether there is a substantial risk to the child.’

(§ 300, subd. (j).) ‘The “nature of the abuse or neglect of the 

sibling” is only one of many factors that the court is to consider in 

assessing whether the child is at risk of abuse or neglect in the 

family home. Subdivision (j) thus allows the court to take into 

consideration factors that might not be determinative if the court 

were adjudicating a petition filed directly under one of those 

subdivisions. [¶] The broad language of subdivision (j) clearly 

indicates that the trial court is to consider the totality of the 

circumstances of the child and his or her sibling in determining 

whether the child is at substantial risk of harm, within the 

meaning of any of the subdivisions enumerated in subdivision (j). 

The provision thus accords the trial court greater latitude to 

exercise jurisdiction as to a child whose sibling has been found to 

have been abused than the court would have in the absence of 

that circumstance.’ [Citation.]” (I.J., supra, 56 Cal.4th at 774.)
9

Adequate evidence establishes Minor was at substantial 

risk of suffering abuse or neglect in the same manner as his 

siblings, i.e., from substance abuse by Mother. Minor was 

relatively close in age to J.R. and A.R., there was nothing about 

the gender of the children that suggested the risk to Minor was 

reduced, and Mother’s mental condition was the same, or worse—

given her denial of any drug use in the prior years—as it was at 

the time of the jurisdiction finding regarding J.R. and A.R. It 

was also undisputed Mother was arrested for possession of 

methamphetamine while pregnant with Minor and shortly 

thereafter a methamphetamine pipe (with residue still inside) 

was found in the bedroom she shared with J.R. and A.R. 

Furthermore, Mother advanced at least one explanation of a 

recent positive test that the juvenile court appropriately 

concluded was not credible, and there were also a couple missed 

drug tests in the months preceding the jurisdiction hearing

despite the juvenile court’s admonishment at the detention 

hearing that she test and test clean. When combined with 

Minor’s very young age and Mother’s repeated, protracted

difficulties with substance abuse, this is sufficient evidence to 

support the juvenile court’s jurisdiction finding. (In re 

Christopher R. (2014) 225 Cal.App.4th 1210, 1219 [substance 

abuse, which often renders parents unable to adequately 

supervise and care for a child, poses an inherent risk to children 

of “‘tender years’”].) 

To be sure, Mother’s record of multiple negative drug tests

since Minor’s birth was some evidence that the requisite risk of 

harm did not exist. But that does not defeat the substantial 

evidence that does support the juvenile court’s decision, 

especially when tests not long before the jurisdiction hearing 
10

revealed alcohol and marijuana use—which, in light of Mother’s 

history and her denial of any use at all, the juvenile court 

appropriately viewed as a gateway to an even more damaging

relapse. (In re M.R. (2017) 8 Cal.App.5th 101, 108 [“[W]e do not 

consider whether there is evidence from which the juvenile court 

could have drawn a different conclusion but whether there is 

substantial evidence to support the conclusion that the court did 

draw”].) Moreover, even putting Mother’s two positive tests out 

of mind, the juvenile court could reasonably conclude that the

relatively short time in which Mother was mostly testing 

negative provided no adequate assurance that the risk to Minor 

from substance abuse by Mother had adequately dissipated. 

(See, e.g., In re J.C. (2014) 233 Cal.App.4th 1, 7 [seven months of 

sobriety insufficient to show parent was not at risk of relapse]; In 

re Amber M. (2002) 103 Cal.App.4th 681, 686 [mother’s 372 days 

of sobriety insufficient to show changed circumstances in light of 

her many years of substance abuse and previous relapses].)
11

DISPOSITION

The finding of jurisdiction is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

MOOR, J.